What’s at
stake: Democracy’s electoral integrity is
threatened by the Supreme Court’s Citizen
United and plutocracy, and the
Fourth Amendment and privacy by the bipartisan NSA in a national security state.

November 5, 2014 at
4:00:00 PM PST ..... Those amendments are commonly called theBill of Rights.
.... Widespread Bill of Rights Day festivities will fun -- and
a whole new way of kicking off the holiday season -- but they will also chill
the ...

The first ten Amendments
are collectively known as the Bill of Rights ...... In
1941, President Franklin D. Roosevelt declared December 15 to be Bill
of Rights Day, commemorating the 150th anniversary of
the ... Retrieved March 6, 2014.

12/10/2014 - Whether an
employer can decline to hire a job applicant based on her perceived religious
needs without any consideration of possible accommodations unless the job
applicant specifically raises the issue.

Young v. United Parcel
Service, Inc.

REPRODUCTIVE FREEDOM,
WOMENS' RIGHTS

12/3/2014 - Whether the
Pregnancy Discrimination Act prohibits an employer from denying a light-duty
accommodation to pregnant workers that is available to other employees.

Williams-Yulee v. The
Florida Bar

FREE SPEECH

11/24/2014 - Whether a
candidate for judicial office can be disciplined for sending out a mass mailing
soliciting small donations and support.

Elonis v. United States

FREE SPEECH

8/22/2014 - Whether the
government is required to prove that someone prosecuted for making threatening
statements intended his words to be taken as a threat.

Jesinoski v. Countrywide
Home Loans, Inc.

DEFENDING TARGETS OF
DISCRIMINATION, RACIAL JUSTICE

7/28/2014 - Whether the
Truth in Lending Act entitles homeowners to rescind their mortgage commitment
by notifying the lender in writing within the period specified by the statute,
or whether the homeowner must file a lawsuit to make the rescission effective.

Heien v. North Carolina

CRIMINAL JUSTICE

6/17/2014 - Whether a
traffic stop based on a police officer’s mistaken understanding of the traffic
laws violates the Fourth Amendment.

Holt v. Hobbs

RELIGIOUS FREEDOM

5/30/2014 - Whether
Arkansas prison officials violated a federal law designed to protect the
religious rights of prisoners when they denied petitioner an exemption to grow
a one-half inch beard in compliance with his religious beliefs.

Yves here. Van Buren continues his examination of what he calls
the “post-Constitutional era”. This post focuses on the loss of privacy, a
presumption enshrined in the Fourth Amendment. Van Buren describes how Fourth
Amendment rights have been eviscerated in the post 9/11 era, such as by
permitting the surveillance state to pour through millions of records using
subpoenas rather than search warrants.

Here’s a
bit of history from another America: the Bill of Rights was designed to protect
the people from their government. If the First Amendment’s right to speak out publicly was the
people’s wall of security, then the Fourth Amendment’s right to privacy was its
buttress. It was once thought that the government should neither be able to
stop citizens from speaking nor peer into their lives. Think of that as the
essence of the Constitutional era that ended when those towers came down on
September 11, 2001. Consider how privacy worked before 9/11 and how it works
now in Post-Constitutional America.

The
Fourth Amendment

A response
to British King George’s excessive invasions of privacy in colonial America,
the Fourth Amendment pulls no punches: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.”

In
Post-Constitutional America, the government might as well have taken scissors
to the original copy of the Constitution stored in the National Archives, then
crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA
revelations of Edward Snowden are, in that sense, not just a shock to the
conscience but to the Fourth Amendment itself: our government spies on us. All
of us. Without suspicion. Without warrants. Without probable cause. Without
restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American
“security” and according to our government, the Fourth Amendment no longer
really applies to our lives.

The
Constitutional Borderline

Begin at America’s borders. Most people believe they are “in”
the United States as soon as they step off an international flight and are thus
fully covered by the Bill of Rights. The truth has, in the twenty-first
century, become infinitely more complicated as long-standing practices are
manipulated to serve the expanding desires of the national security state. The
mining of words and concepts for new, darker meanings is a hallmark of how
things work in Post-Constitutional America.

Over the
years, recognizing that certain situations could render Fourth
Amendment requirements impractical or against the public interest, the Supreme
Court crafted various exceptions to them. One was the “border search.” The idea
was that the United States should be able to protect itself by stopping and
examining people entering the country. As a result, routine border searches
without warrants are constitutionally “reasonable” simply by virtue of where
they take place. It’s a concept with a long history, enumerated by the First
Congress in 1789.

Here’s the twist in the present era: the definition of “border”
has been changed. Upon arriving in the United States from abroad, you are not
legally present in the country until allowed to enter by Department of Homeland
Security (DHS) officials. You know, the guys who look into your luggage and
stamp your passport. Until that moment, you exist in a legal void where the
protections of the Bill of Rights and the laws of the United States do not
apply. This concept also predates Post-Constitutional America and the DHS.
Remember the sorting process at Ellis Island in the late nineteenth and early
twentieth centuries? No lawyers allowed there.

Those
modest exceptions were all part of constitutional America. Today, once
reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land
circling the country and extending 100 miles inland
that includes two-thirds of the U.S. population. In this vast region,
Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At
airports, American citizens are now similarly subjected to search and seizure
as filmmaker Laura Poitras — whose work focuses on national security
issues in general and Edward Snowden in the particular — knows firsthand. Since
2006, almost every time Poitras has returned to the U.S., her plane
has been met by government agents and her laptop and phone examined.

There are
multiple similar high-profile cases (including those of aWikileaks researcher and a Chelsea Manning supporter),
but ordinary citizens are hardly exempt. Despite standing in an American
airport, a pane of glass away from loved ones, you are not in the U.S. and have
no Fourth Amendment rights. How many such airport searches are conducted in the
aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the
18-month period beginning in October 2008, more than 6,600 people, about half
of them U.S. citizens, were subjected to electronic device searches at the
border.

Still,
reminding us that it’s possible to have a sense of humor on the road to hell,
the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to
subject travelers to unwarranted scrutiny.”
(emphasis added)

Making
It All Constitutional In-House

Here’s
another example of how definitions have been readjusted to serve the national
security state’s overriding needs: the Department of Justice (DOJ) created
a Post-Constitutional interpretation of the Fourth
Amendment that allows it to access millions of records of Americans using only
subpoenas, not search warrants.

Some
background: a warrant is court permission to search and seize something. As the
Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software.
Warrants can only be issued on “probable cause.” The Supreme Court definedprobable cause as requiring a high standard of proof,
or to quote its words, “a fair probability that contraband or evidence of a
crime will be found in a particular place.”

A subpoena on the other hand is nothing more than a government
order issued to a citizen or organization to do something, most typically to
produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own
without interaction with a court. In such cases, there is no independent
oversight.

The
Department of Justice now claims that, under the Fourth Amendment, it can
simply subpoena an Internet company like Facebook and demand
that they look for and turn over all the records they have on our Mr. Anderson.
Their explanation: the DOJ isn’t doing the searching, just demanding that
another organization do it. As far as its lawyers are concerned, in such a
situation, no warrant is needed. In addition, the Department of Justice
believes it has the authority to subpoena multiple records, maybe even all the
records Facebook has. Records on you? Some group of people including you?
Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosingmuch about the information they hand over to
the NSA or other government outfits about you.

It’s easy
enough to miss the gravity of this in-house interpretation when it comes to the
Fourth Amendment. If the FBI today came to your home and demanded access to
your emails, it would require a warrant obtained from a court after a show of
probable cause to get them. If, however, the Department of Justice can simply
issue a subpoena to Google to the same end, they can potentially vacuum up
every Gmail message you’ve ever sent without a warrant and it won’t constitute
a “search.” The DOJ has continued this practice even though in 2010 a federal
appeals courtruled that bulk warrantless access to email violates the
Fourth Amendment. An FBI field manual released under the Freedom of
Information Act similarly makes it clear that the Bureau’s agents don’t need
warrants to access email in bulk when it’s pulled directly from Google, Yahoo,
Microsoft, or other service providers.

How far
can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the
inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project
On Government Oversight (POGO) turn overall information it has collected relating to abuses
and mismanagement at VA medical facilities. POGO is a private, non-profit
group, dedicated to assisting whistleblowers. The VA subpoena demands access to
records sent via an encrypted website to POGO under a promise of anonymity,
many from current or former VA employees.

Rather
than seek to break the encryption surreptitiously and illegally to
expose the whistleblowers, the government has taken a simpler, if
unconstitutional route, by simply demanding the names and reports. POGO
has refused to comply, setting up a legal confrontation. In the
meantime, consider it just another sign of the direction the government is
heading when it comes to the Fourth Amendment.

Technology
and the Fourth Amendment

Some
observers suggest that there is little new here. For example, the compiling of
information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the
1960s has been well documented. Paper reports on activities, recordings of
conversations, and photos of meetings and trysts, all secretly obtained,
exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government
also wiretapped the calls and conversations of Americans under the Bureau’s
counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for
a strange kind of nothing-new-under-the-sun reassurance have not grasped the
impact of fast-developing technology. In scale, scope, and sheer efficiency,
the systems now being employed inside the U.S. by the NSA and other
intelligence agencies are something quite new and historically significant.
Size matters.

To avoid
such encroaching digitization would essentially mean withdrawing from society,
not exactly an option for most Americans. More of life is now online — from
banking to travel to social media. Where the NSA was once limited to
traditional notions of communication — the written and spoken word — new
possibilities for following you and intruding on your life in myriad ways are
being created. The agency can, for instance, now collect images, photos, and
video, and subject them tofacial recognition technology that can increasingly put a
name to a face. Such technology, employed today at casinos as well as in the secret world of the national
security state, can pick out a face in a crowd and identify it, taking into
account age, changes in facial hair, new glasses, hats, and the like.

An
offshoot of facial recognition is the broader category of biometrics, the use
of physical and biological traits unique to a person for identification. These
can be anything from ordinary fingerprinting to cutting-edge DNA records and
iris scans. (Biometrics is already big business and even has its own trade association in
Washington.) One of the world’s largestknown
collections of biometric data is held by the Department of State. As of
December 2009, its Consular Consolidated Database (CCD) contained more than 75
million photographs of Americans and foreigners and is growing at a rate of
approximately 35,000 records per day. CCD also collects and stores indefinitely
the fingerprints of all foreigners issued visas.

With ever
more data available, the NSA and other agencies are creating ever more robust
ways to store it. Such storage is cheap and bounteous, with few
limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints
to make holding more data longer even easier and cheaper. The old days of file
cabinets, or later, clunky disk drives, are over in an era of mega-data
storage warehouses.

The way
data is aggregated is also changing fast. Where data was once kept in cabinets
in separate offices, later in bureaucratically isolated, agency-by-agency
digital islands, post-9/11 sharing mandates coupled with new technology have led to
fusion databases. In these, information from such disparate sources as license plate readers,
wiretaps, and records of library book choices
can be aggregated and easily shared. Basically everything about a person,
gathered worldwide by various agencies and means, can now be put into a single
“file.”

Once you
have the whole haystack, there’s still the problem of how to locate the
needle. For this, emerging technologies grow ever more capable of analyzing Big
Data. Some simple ones are even available to the public, like IBM’s Non-Obvious
Relationship Awareness software (NORA). It can, for example, scan multiple databases,
geolocation information, and social media friend lists and recognize
relationships that may not be obvious at first glance. The software is fast and
requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins
are NSA’s solution to one of the last hurdles to knowing nearly everything: the
need for human analysts to “connect the dots.” Skilled analysts take time to
train, are prone to human error, and — given the quickly expanding supply of
data — will always be in demand. Automated analysis also offers the NSA other
advantages. Software doesn’t have a conscience and it can’t blow the whistle.

What does all this mean in terms of the Fourth Amendment? It’s
simple: the technological and human factors that constrained the gathering and
processing of data in the past are fast disappearing. Prior to these
“advances,” even the most ill-intentioned government urges to intrude on and do
away with the privacy of citizens were held in check by the possible. The
techno-gloves are now off and the possible is increasingly whatever an official
or bureaucrat wants to do. That means violations of the Fourth Amendment are
held in check only by the goodwill of the government, which might have
qualified as the ultimate nightmare of those who wrote the Constitution.

On this
front, however, there are signs of hope that the Supreme Court may return to
its check-and-balance role of the Constitutional era. One sign, directly
addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the
contents of a cell phone without a warrant. (The court also recently
issued a rulingdetermining that the procedures for challenging one’s
inclusion on the government’s no-fly list are unconstitutional, another hopeful
sign.)

Prior to
the cell phone decision, law enforcement held that if someone was arrested
for, say, a traffic violation, the police had the right to examine the full
contents of his or her cell phone — call lists, photos, social media, contacts,
whatever was on the device. Police traditionally have been able to search physical
objects they find on an arrestee without a warrant on the grounds that such
searches are for the protection of the officers.

In its new decision, however, the court acknowledged that cell
phones represent far more than a “physical object.” The information they hold
is a portrait of someone’s life like what’s in a closet at home or on a
computer sitting on your desk. Searches of those locations almost always
require a warrant.

Does this matter when talking about the NSA’s technological
dragnet? Maybe. While the Supreme Court’s decision applies directly to
street-level law enforcement, it does suggest an evolution within the court, a
recognition of the way advances in technology have changed the Fourth
Amendment. A cell phone is not an object anymore; it is now recognized as a
portal to other information that a person has gathered in one place for
convenience with, as of this decision, a reasonable expectation of privacy.

National
Security Disclosures Under HIPPA

While the NSA’s electronic basket of violations of the Fourth
Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a
violation that sits in broad daylight: since 2002, my doctor can disclose my
medical records to the NSA without my permission or knowledge. So can yours.

Congress
passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information
is properly protected.” You likely signed a HIPPA agreement at your doctor’s
office, granting access to your records. However, Congress quietly amended the
HIPPA Act in 2002 to permit disclosure of those records for national security
purposes. Specifically, the new version of this “privacy law”states: “We may also disclose your PHI [Personal Health
Information] to authorized federal officials as necessary for national security
and intelligence activities.” The text is embedded deep in your health care
provider’s documentation. Look for it.

How does this work? We don’t know. Do the NSA or other agencies
have ongoing access to the medical records of all Americans? Do they have to
request specific ones? Do doctors have any choice in whose records to forward
under what conditions? No one knows. My HMO, after much transferring of my
calls, would ultimately only refer me back to the HIPPA text with a promise
that they follow the law.

The
Snowden revelations are often dismissed by people who wonder what they have
to hide. (Who cares if the NSA sees my cute cat videos?) That’s
why health-care spying stands out. How much more invasive could it be than for
your government to have unfettered access to such a potentially personal and
private part of your life — something, by the way, that couldn’t have less to
do with American “security” or combating terrorism.

Our health-care providers, in direct confrontation with the
Fourth Amendment, are now part of the metastasizing national security state.
You’re right to be afraid, but for goodness sake, don’t discuss your fears with
your doctor.

How
the Unreasonable Becomes Reasonable

At this
point, when it comes to national security matters, the Fourth Amendment has by
any practical definition been done away with as a part of Post-Constitutional
America. Whole books have been written just about Edward Snowden and
more information about government spying regularly becomes available. We don’t
lack for examples. Yet as the obviousness of what is being done becomes
impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to
spin the debate into false discussions about how to “balance” freedom versus
security, to raise the specter of another 9/11 if spying is curtailed, and to
fall back on that go-to “nothing to hide, nothing to fear” line.

In Post-Constitutional America, the old words that once defined
our democracy are twisted in new ways, not discarded. Previously unreasonable
searches become reasonable ones under new government interpretations of the
Fourth Amendment. Traditional tools of law, like subpoenas and warrants,
continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights
they no longer have. Wait for the rhetoric that goes with the celebrations of
our freedoms this July 4th. You won’t hear a lot about the NSA then, but you
should. In pre-constitutional America the colonists knew that they were under
the king’s thumb. In totalitarian states of the last century like the Soviet
Union, people dealt with their lack of rights and privacy with grim humor and
subtle protest. However, in America, ever exceptional, citizens passively watch
their rights disappear in the service of dark ends, largely without protest and
often while still celebrating a land that no longer exists.

The signing of the U.S. Constitution in
Philadelphia. (Credit: Library of Congress)Here’s a bit of history from another
America: the Bill of Rights was designed to protect the people from their
government. If the First Amendment’s right to speak out publicly was the
people's wall of security, then the Fourth Amendment’s right to privacy was its
buttress. It was once thought that the government should neither be able to
stop citizens from speaking nor peer into their lives. Think of that as the
essence of the Constitutional era that ended when those towers came down on
September 11, 2001. Consider how privacy worked before 9/11 and how it works now
in Post-Constitutional America.

The Fourth Amendment

A response to British King
George’s excessive invasions of privacy in colonial America, the Fourth
Amendment pulls no punches: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”

In Post-Constitutional
America, the government might as well have taken scissors to the original copy
of the Constitution stored in the National Archives, then crumpled up the
Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward
Snowden are, in that sense, not just a shock to the conscience but to the
Fourth Amendment itself: our government spies on us. All of us. Without
suspicion. Without warrants. Without probable cause. Without restraint. This
would qualify as “unreasonable” in our old constitutional world, but no more.

Here, then, are four ways
that, in the name of American “security” and according to our government, the
Fourth Amendment no longer really applies to our lives.

The Constitutional
Borderline

Begin at America's
borders. Most people believe they are “in” the United States as soon as they
step off an international flight and are thus fully covered by the Bill of
Rights. The truth has, in the twenty-first century, become infinitely more
complicated as long-standing practices are manipulated to serve the expanding
desires of the national security state. The mining of words and concepts for
new, darker meanings is a hallmark of how things work in Post-Constitutional
America.

Over the years,
recognizing that certain situations could render Fourth Amendment requirements
impractical or against the public interest, the Supreme Court crafted various
exceptions to them. One was the “border search.” The idea was that the United
States should be able to protect itself by stopping and examining people
entering the country. As a result, routine border searches without warrants are
constitutionally “reasonable” simply by virtue of where they take place. It’s a
concept with a long history, enumerated by the First Congress in 1789.

Here’s the twist in the
present era: the definition of “border” has been changed. Upon arriving in the
United States from abroad, you are not legally present in the country until
allowed to enter by Department of Homeland Security (DHS) officials. You know,
the guys who look into your luggage and stamp your passport. Until that moment,
you exist in a legal void where the protections of the Bill of Rights and the
laws of the United States do not apply. This concept also predates
Post-Constitutional America and the DHS. Remember the sorting process at Ellis
Island in the late nineteenth and early twentieth centuries? No lawyers allowed
there.

Those modest exceptions
were all part of constitutional America. Today, once reasonable searches at the
border have morphed into a vast “Constitution-free zone.” The “border” is now a
strip of land circling the country and extending 100 miles inland that includes
two-thirds of the U.S. population. In this vast region, Customs and Border
Protection (CBP) can set up checkpoints and conduct warrantless searches. At
airports, American citizens are now similarly subjected to search and seizure
as filmmaker Laura Poitras -- whose work focuses on national security issues in
general and Edward Snowden in the particular -- knows firsthand. Since 2006,
almost every time Poitras has returned to the U.S., her plane has been met by
government agents and her laptop and phone examined.

There are multiple similar
high-profile cases (including those of a Wikileaks researcher and aChelsea
Manning supporter), but ordinary citizens are hardly exempt. Despite standing
in an American airport, a pane of glass away from loved ones, you are not in
the U.S. and have no Fourth Amendment rights. How many such airport searches
are conducted in the aggregate is unknown. The best information we have comes
from a FOIA request by the ACLU. It revealed that, in the 18-month period
beginning in October 2008, more than 6,600 people, about half of them U.S.
citizens, were subjected to electronic device searches at the border.

Still, reminding us that
it’s possible to have a sense of humor on the road to hell, the CBP offers this
undoubtedly inadvertent pun at its website: “It is not the intent of CBP to
subject travelers to unwarranted scrutiny.” (emphasis added)

Making It All
Constitutional In-House

Here’s another example of
how definitions have been readjusted to serve the national security state's
overriding needs: the Department of Justice (DOJ) created a Post-Constitutional
interpretation of the Fourth Amendment that allows it to access millions of
records of Americans using only subpoenas, not search warrants.

Some background: a warrant
is court permission to search and seize something. As the Fourth Amendment
makes clear, it must be specific: enter Thomas Anderson's home and look for
hacked software. Warrants can only be issued on “probable cause.” The Supreme
Court defined probable cause as requiring a high standard of proof, or to quote
its words, “a fair probability that contraband or evidence of a crime will be
found in a particular place.”

A subpoena on the other
hand is nothing more than a government order issued to a citizen or
organization to do something, most typically to produce a document. Standards
for issuing a subpoena are flexible, as most executive agencies can issue them
on their own without interaction with a court. In such cases, there is no
independent oversight.

The Department of Justice
now claims that, under the Fourth Amendment, it can simplysubpoena an Internet
company like Facebook and demand that they look for and turn over all the
records they have on our Mr. Anderson. Their explanation: the DOJ isn't doing
the searching, just demanding that another organization do it. As far as its
lawyers are concerned, in such a situation, no warrant is needed. In addition,
the Department of Justice believes it has the authority to subpoena multiple
records, maybe even all the records Facebook has. Records on you? Some group of
people including you? Everyone? We don't know, as sources of data like Facebook
and Google are prohibited from disclosing much about the information they hand
over to the NSA or other government outfits about you.

It’s easy enough to miss
the gravity of this in-house interpretation when it comes to the Fourth
Amendment. If the FBI today came to your home and demanded access to your
emails, it would require a warrant obtained from a court after a show of
probable cause to get them. If, however, the Department of Justice can simply
issue a subpoena to Google to the same end, they can potentially vacuum up
every Gmail message you’ve ever sent without a warrant and it won’t constitute
a “search.” The DOJ has continued this practice even though in 2010 a federal
appeals court ruled that bulk warrantless access to email violates the Fourth
Amendment. An FBI field manual released under the Freedom of Information Act
similarly makes it clear that the Bureau’s agents don’t need warrants to access
email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other
service providers.

How far can the use of a
subpoena go in bypassing the Fourth Amendment? Recently, the inspector general
of the Department of Veterans Affairs (VA) issued a subpoena -- no court
involved -- demanding that the Project On Government Oversight (POGO) turn over
all information it has collected relating to abuses and mismanagement at VA
medical facilities. POGO is a private, non-profit group, dedicated to assisting
whistleblowers. The VA subpoena demands access to records sent via an encrypted
website to POGO under a promise of anonymity, many from current or former VA
employees.

Rather than seek to break
the encryption surreptitiously and illegally to expose the whistleblowers, the
government has taken a simpler, if unconstitutional route, by simply demanding
the names and reports. POGO has refused to comply, setting up a legal
confrontation. In the meantime, consider it just another sign of the direction
the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth
Amendment

Some observers suggest
that there is little new here. For example, the compiling of information on
innocent Americans by J. Edgar Hoover's low-tech FBI back in the 1960s has been
well documented. Paper reports on activities, recordings of conversations, and
photos of meetings and trysts, all secretly obtained, exposed the lives of
civil rights leaders, popular musicians, and antiwar protesters. From 1956 to
at least 1971, the government also wiretapped the calls and conversations of
Americans under the Bureau’s counterintelligence program (COINTELPRO).

But those who look to such
history of government illegality for a strange kind of
nothing-new-under-the-sun reassurance have not grasped the impact of
fast-developing technology. In scale, scope, and sheer efficiency, the systems
now being employed inside the U.S. by the NSA and other intelligence agencies
are something quite new and historically significant. Size matters.

To avoid such encroaching
digitization would essentially mean withdrawing from society, not exactly an
option for most Americans. More of life is now online -- from banking to travel
to social media. Where the NSA was once limited to traditional notions of
communication -- the written and spoken word -- new possibilities for following
you and intruding on your life in myriad ways are being created. The agency
can, for instance, now collect images, photos, and video, and subject them to
facial recognition technology that can increasingly put a name to a face. Such
technology, employed today at casinos as well as in the secret world of the
national security state, can pick out a face in a crowd and identify it, taking
into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial
recognition is the broader category of biometrics, the use of physical and
biological traits unique to a person for identification. These can be anything
from ordinary fingerprinting to cutting-edge DNA records and iris scans.
(Biometrics is already big business and even has its own trade association in
Washington.) One of the world's largest known collections of biometric data is
held by the Department of State. As of December 2009, its Consular Consolidated
Database (CCD) contained more than 75 million photographs of Americans and foreigners
and is growing at a rate of approximately 35,000 records per day. CCD also
collects and stores indefinitely the fingerprints of all foreigners issued
visas.

With ever more data
available, the NSA and other agencies are creating ever more robust ways to
store it. Such storage is cheap and bounteous, with few limits other than the
availability of electricity and water to cool the electronics. Emerging tech
will surely bypass many of the existing constraints to make holding more data
longer even easier and cheaper. The old days of file cabinets, or later, clunky
disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated
is also changing fast. Where data was once kept in cabinets in separate
offices, later in bureaucratically isolated, agency-by-agency digital islands,
post-9/11 sharing mandates coupled with new technology have led to fusion
databases. In these, information from such disparate sources as license plate
readers, wiretaps, and records oflibrary book choices can be aggregated and
easily shared. Basically everything about a person, gathered worldwide by
various agencies and means, can now be put into a single “file.”

Once you have the whole
haystack, there’s still the problem of how to locate the needle. For this, emerging
technologies grow ever more capable of analyzing Big Data. Some simple ones are
even available to the public, like IBM's Non-Obvious Relationship Awareness
software (NORA). It can, for example, scan multiple databases, geolocation
information, and social media friend lists and recognize relationships that may
not be obvious at first glance. The software is fast and requires no human
intervention. It runs 24/7/365/Forever.

Tools like NORA and its
more sophisticated classified cousins are NSA's solution to one of the last
hurdles to knowing nearly everything: the need for human analysts to “connect
the dots.” Skilled analysts take time to train, are prone to human error, and
-- given the quickly expanding supply of data -- will always be in demand. Automated
analysis also offers the NSA other advantages. Software doesn't have a
conscience and it can't blow the whistle.

What does all this mean in
terms of the Fourth Amendment? It’s simple: the technological and human factors
that constrained the gathering and processing of data in the past are fast
disappearing. Prior to these “advances,” even the most ill-intentioned
government urges to intrude on and do away with the privacy of citizens were
held in check by the possible. The techno-gloves are now off and the possible
is increasingly whatever an official or bureaucrat wants to do. That means
violations of the Fourth Amendment are held in check only by the goodwill of
the government, which might have qualified as the ultimate nightmare of those
who wrote the Constitution.

On this front, however,
there are signs of hope that the Supreme Court may return to its
check-and-balance role of the Constitutional era. One sign, directly addressing
the Fourth Amendment, is this week's unanimous decision that the police cannot
search the contents of a cell phone without a warrant. (The court also recently
issued a ruling determining that the procedures for challenging one's inclusion
on the government’s no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone
decision, law enforcement held that if someone was arrested for, say, a traffic
violation, the police had the right to examine the full contents of his or her
cell phone -- call lists, photos, social media, contacts, whatever was on the device.
Police traditionally have been able to search physical objects they find on an
arrestee without a warrant on the grounds that such searches are for the
protection of the officers.

In its new decision,
however, the court acknowledged that cell phones represent far more than a
"physical object." The information they hold is a portrait of
someone's life like what’s in a closet at home or on a computer sitting on your
desk. Searches of those locations almost always require a warrant.

Does this matter when
talking about the NSA's technological dragnet? Maybe. While the Supreme Court's
decision applies directly to street-level law enforcement, it does suggest an
evolution within the court, a recognition of the way advances in technology
have changed the Fourth Amendment. A cell phone is not an object anymore; it is
now recognized as a portal to other information that a person has gathered in
one place for convenience with, as of this decision, a reasonable expectation
of privacy.

National Security
Disclosures Under HIPPA

While the NSA’s electronic
basket of violations of the Fourth Amendment were, pre-Snowden, meant to take
place in utter secrecy, here’s a violation that sits in broad daylight: since
2002, my doctor can disclose my medical records to the NSA without my
permission or knowledge. So can yours.

Congress passed the Health
Information Portability and Accountability Act (HIPPA) in 1996 “to assure that
individuals’ health information is properly protected.” You likely signed a
HIPPA agreement at your doctor's office, granting access to your records.
However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of
those records for national security purposes. Specifically, the new version of
this “privacy law” states: “We may also disclose your PHI [Personal Health
Information] to authorized federal officials as necessary for national security
and intelligence activities.” The text is embedded deep in your health care
provider’s documentation. Look for it.

How does this work? We
don’t know. Do the NSA or other agencies have ongoing access to the medical
records of all Americans? Do they have to request specific ones? Do doctors
have any choice in whose records to forward under what conditions? No one
knows. My HMO, after much transferring of my calls, would ultimately only refer
me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations
are often dismissed by people who wonder what they have to hide. (Who cares if
the NSA sees my cute cat videos?) That's why health-care spying stands out. How
much more invasive could it be than for your government to have unfettered
access to such a potentially personal and private part of your life --
something, by the way, that couldn’t have less to do with American “security”
or combating terrorism.

Our health-care providers,
in direct confrontation with the Fourth Amendment, are now part of the
metastasizing national security state. You’re right to be afraid, but for
goodness sake, don't discuss your fears with your doctor.

How the Unreasonable
Becomes Reasonable

At this point, when it
comes to national security matters, the Fourth Amendment has by any practical
definition been done away with as a part of Post-Constitutional America.
Wholebooks have been written just about Edward Snowden and more information
about government spying regularly becomes available. We don't lack for
examples. Yet as the obviousness of what is being done becomes impossible to
ignore and reassurances offered up by thepresident and others are shown to be
lies, the government continues to spin the debate into false discussions about
how to “balance” freedom versus security, to raise the specter of another 9/11
if spying is curtailed, and to fall back on that go-to “nothing to hide,
nothing to fear” line.

In Post-Constitutional
America, the old words that once defined our democracy are twisted in new ways,
not discarded. Previously unreasonable searches become reasonable ones under
new government interpretations of the Fourth Amendment. Traditional tools of
law, like subpoenas and warrants, continue to exist even as they morph into
monstrous new forms.

Americans are told (and
often believe) that they retain rights they no longer have. Wait for the
rhetoric that goes with the celebrations of our freedoms this July 4th. You
won’t hear a lot about the NSA then, but you should. In pre-constitutional
America the colonists knew that they were under the king's thumb. In
totalitarian states of the last century like the Soviet Union, people dealt
with their lack of rights and privacy with grim humor and subtle protest.
However, in America, ever exceptional, citizens passively watch their rights
disappear in the service of dark ends, largely without protest and often while
still celebrating a land that no longer exists.

Peter Van Buren spent a year in Iraq as a State Department Foreign Service
Officer serving as Team Leader for two Provincial Reconstruction Teams (PRTs).
Now in Washington, he writes about Iraq and the Middle East at his blog, We
Meant Well. His book is We Meant Well:
How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People
(The American Empire Project, Metropolitan Books).

The language of political corruption is the default invective of
our jaded age. For all our disposition to believe the worst, however, Beltway
knavery has only rarely been the object of sustained historical consideration.
Most corruption writing, for reasons of journalistic necessity, focuses on
particular scandals or individual rogues. TV shows on the subject, meanwhile,
assure us that vice is simply a Washington constant; that it saunters along the
streets of the capital today with the same easy, untroubled gait as it always
has.

The true student of misgovernment knows that the story is grander
and more complicated than that. Washington isn’t simply a Place of Wickedness,
throbbing with sin at all times and always in the same way. The misdeeds of
Iran-contra did not much resemble the turpitude of, say, the Crédit Mobilier
episode, even if they did have a great deal in common with the screw-ups of the
George W. Bush years. And so the most ambitious chronicler of political
misbehavior looks for something higher: a theory, a dialectic, a telos of
scandal.

Surprisingly few have been able to pull this off. There was the
muckraker Lincoln Steffens, who called himself a “graft philosopher” as he
traveled from city to city studying political machines at the turn of the last
century. There was the historian Matthew Josephson, whose 1938 masterpiece, “The
Politicos,” traced the marriage of money with politics from its dalliances
during the Grant administration until its final, grotesque consummation in
William McKinley’s electoral triumph of 1896.

And now comes Zephyr Teachout, a professor at Fordham University
Law School and a candidate in this year’s Democratic primary for governor of
New York. Her entry into the field, “Corruption in America,” includes plenty of
the juicy stories that make the genre so much fun to read. We learn, for
example, about a diamond-studded snuffbox that Louis XVI gave Benjamin
Franklin, then our ambassador to France, and how the Revolutionary generation
regarded this gift — the result of a noncontroversial custom in Europe — as a
possible threat to republican virtue. We read about an officer of the Turkish
government in the 1870s who agreed to sell the products of an American arms
manufacturer to his government in exchange for a small consideration, and who
then, having duly moved the units, went to court to have the deal enforced.
Good stuff, all of it. You have probably heard pundits say we are living in an
age of “legalized bribery”; “Corruption in America” is the book that makes
their case in careful detail.

As you might have guessed, Teachout’s main target is the
currently reigning money-in-politics doctrine of the Supreme Court, as defined
mainly by Citizens United, the 2010 decision that struck down certain
restrictions on political spending by corporations. Today’s court understands
“corruption” as a remarkably rare malady, a straight-up exchange of money for
official acts. Any definition broader than that, the justices say, transgresses
the all-important First Amendment. Besides, as Justice Anthony Kennedy
announced in the Citizens United decision, the court now knows that “independent
expenditures, including those made by corporations, do not give rise to
corruption or the appearance of corruption” — a statement that I guess makes
sense somehow in law-land but sounds to the layman’s ear like the patter of a
man who has come unzipped from reality.

The first few American generations, Teachout reminds us, saw
things very differently; for them, corruption was a “national fixation.”
Drawing on Montesquieu and their understanding of ancient history, the founders
fretted about the countless ways a republic might be undone from within. “They
saw their task this way,” Teachout writes: “How could they create a system that
would be most likely to be filled with men of civic virtue but avoid creating
temptations that might corrode that virtue?” Their answer was to build
structural barriers keeping public and personal interests separated, without
getting lost in considerations of whether a forbidden activity did or did not
amount to what our current court calls a “quid pro quo.”

The dings and the dents in their grand design started appearing
almost immediately. In 1795, it was discovered that members of the Georgia
Legislature had been bribed to hand over enormous stretches of land to
speculators. The guilty were promptly booted from office, but then things got
complicated. Was it possible for a state to take back land that a corrupt but
duly elected legislature had given away? The Supreme Court eventually decided
it wasn’t — corruption was just too hard to define.

And so have the debates gone, right down to our own day. We
think of all the laws passed over the years to restrict money in politics — and
of all the ways the money has flowed under and around those restrictions. And
finally, it seems to me, we just gave up out of sheer exhaustion.

According to Teachout, however, it’s much worse than this. Our
current Supreme Court, in Citizens United, “took that which had been named
corrupt for over 200 years” — which is to say, gifts to politicians — “and
renamed it legitimate.” Teachout does not exaggerate. Here is Justice Kennedy
again, in the Citizens United decision: “The censorship we now confront is vast
in its reach. The government has ‘muffle[d] the voices that best represent the
most significant segments of the economy.’ ”

You read that right: The economy needs to be
represented in democratic politics, or at least the economy’s “most significant
segments,” whatever those are, and therefore corporate “speech,” meaning gifts,
ought not to be censored. Corporations now possess the rights that the founders
reserved for citizens, and as Teachout explains, what used to be called “corruption
becomes democratic responsiveness.”

Let me pause here to take note of another recurring peculiarity
in corruption literature: an eerie overlap between theory and practice. If you
go back to that “censorship” quotation from Kennedy, you will notice he quotes
someone else: his colleague Antonin Scalia, in an opinion from 2003. Google the
quote and one place you’ll find it is in a book of Scalia’s opinions that was
edited in 2004 by none other than the lobbyist Kevin Ring, an associate of Jack
Abramoff who would later be convicted of corrupting public officials.

As it happens, Teachout gives us a long and savory chapter on
the legal history of lobbying. Once upon a time, lobbying was regarded as
obviously perfidious; in California it was a felony; and contracts to lobby
were regarded as reprehensible by the Supreme Court. Here is a justice of that
body in the year 1854, delivering the court’s decision in a case concerning
lobbyists and lobbying contracts:

“The use of such means and such agents will have the effect to
subject the state governments to the combined capital of wealthy corporations,
and produce universal corruption, commencing with the representative and ending
with the elector. Speculators in legislation, public and private, a compact
corps of venal solicitors, vending their secret influences, will infest the
capital of the Union and of every state, till corruption shall become the
normal condition of the body politic, and it will be said of us as of Rome — omne
Romae venale.”

Well, folks, it happened all right, just as predicted. State
governments subject to wealthy corporations? Check. Speculators in legislation,
infesting the capital? They call it K Street. And that fancy Latin remark about
Rome? They do say that of us today. Just turn on your TV sometime and let the
cynicism flow.

And all of it has happened, Teachout admonishes, because the
founders’ understanding of corruption has been methodically taken apart by a
Supreme Court that cynically pretends to worship the founders’ every word. “We
could lose our democracy in the process,” Teachout warns, a bit of hyperbole
that maybe it’s time to start taking seriously.

CORRUPTION IN AMERICA

From
Benjamin Franklin’s Snuff Boxto Citizens United

By Zephyr Teachout

376 pp. Harvard University Press. $29.95.

Thomas Frank is a
columnist for Salon and the author, most recently, of “Pity the Billionaire.”

A version of this review appears in print on October 19, 2014,
on page BR20 of the Sunday Book Review with the headline: The Best
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